CAT/C/59/D/581/2014
that the complainant was not a refugee in need of protection, and that his removal would
not subject him personally to a danger, believed on substantial grounds to exist, of torture
within the meaning of article 1 of the Convention.
4.6
This decision was based on two grounds — that the complainant’s claims were noncredible and that he has alternative possibilities for internal flight within India. The
complainant continuously amended his testimony and, at times, contradicted himself when
describing police treatment in his home country. While he claims that his hand had been
broken as a result of torture, the doctor’s letter he submitted does not corroborate this
allegation. A letter from a Canadian doctor indicated that the complainant did have an old
fracture of the hand.
4.7
The State party submits that the complainant also provided contradictory statements
regarding affidavits from a doctor, a lawyer and a sarpanch (head of a village) in support of
the claims. The complainant claimed to have contacted these persons on 19 April 2013, but
later changed the date to 9 April 2013. These and other contradictions taken together, the
State party submits, lead to the conclusion that the complainant has not presented credible
and trustworthy evidence to substantiate his claim.
4.8
The State party further submits that, in addition to the lack of credibility, the
Division found that there was no reason why the complainant could not safely reside in
another part of India, for example Bangalore. The Division had considered the
complainant’s submission that he was not accused of any crime under Indian law. There is
also documented evidence that the police would pursue a handful of cases against Sikhs in
respect of individuals considered to be hard-core militants. The Division noted that there
was no central police database and that records were kept locally. Security checks by police
from another region are therefore extremely rare and difficult to conduct.
4.9
The State party submits that a judicial review of the Division’s decision is available
to the complainant, through a leave to appeal from the Federal Court. The complainant
applied for this leave to appeal, but it was rejected on 28 October 2012 without any reason
being given. On 21 May 2014, the complainant became eligible to apply for a pre-removal
risk assessment, which he did on 30 May 2014. His removal has been stayed pending the
outcome of the assessment. At the time of submission of his complaint, the complainant
was not eligible to apply for the assessment or for permanent resident status on
humanitarian and compassionate grounds.
4.10 The State party considers that individuals are not eligible to apply for a pre-removal
risk assessment or application on humanitarian and compassionate grounds within 12
months of the decision of the Refugee Protection Division, in order to streamline the
asylum system. The State party considers that risk assessments within 12 months are not
generally necessary. The State party submits that it is only its good faith cooperation with
the Committee’s interim measures request that has allowed the complainant to remain in
Canada and become eligible for the pre-removal risk assessment review. The State party
contends that such interim measures should be appropriate only where there is strong
evidence of a risk of irreparable harm if the claimant is returned to his or her home country.
4.11 In his complaint to the Committee, the complainant claims that, since his departure
from India, his family members have been harassed by the police and security services.
This claim regarding the family has not been put before domestic decision makers for
consideration. In addition, the complainant has not made any reference to any risk to him
from the security agencies, and has provided no evidence to the Committee in this regard.
The State party submits that the fact that the complainant could pursue a domestic remedy
in which his new allegations of risk on removal would be assessed renders this complaint
inadmissible pursuant to article 22 of the Convention.
4